The High Court refused applications by two patients seeking release from a secure psychiatric unit after their involuntary detention orders were revoked. The patients lacked capacity to consent to remaining in hospital, but the court held that their continued presence there was permitted under the Mental Health Act 2001 and did not amount to unlawful detention.
In a judgment delivered on 15 May 2009, Mr Justice Michael Peart said each patient had been admitted involuntarily after a consultant psychiatrist considered them to have severe dementia meeting the Act’s definition of mental disorder. Before a Mental Health Tribunal could review the detentions, the orders were revoked after the responsible psychiatrists concluded the patients no longer met that definition. Both remained in the same secure unit, receiving care and treatment.
Their solicitor argued that the patients were, in reality, detained: they could not leave alone and might be prevented from doing so, while they could not understand or exercise the right to seek a tribunal review. The court accepted for the purpose of its decision that attempts to leave might prompt use of the Act’s short-term detention procedure. It also accepted that the unit was locked and that the patients lacked capacity to choose voluntary status.
The judge declined to decide in these Article 40 proceedings whether the revocation decisions were medically wrong. He said that challenge would be more properly brought by judicial review or potentially through a tribunal review, and that the court could not second-guess the consultants’ opinions without countervailing expert evidence. He made no concluded finding on whether a tribunal review remained available in the circumstances.
On the central question, the court said the Act’s definition of a voluntary patient did not require that person to be capable of consenting to remain in the approved centre. It considered the revocation of an involuntary order distinct from immediate discharge from the hospital. The Act permitted a patient to remain after becoming no longer liable to involuntary detention, while the hospital’s duty of care required attention to the patients’ safety. The judge said the patients could leave with a responsible family member, subject to any deterioration that again met the statutory criteria.
The court therefore found that the applicants were not unlawfully detained and refused both applications. The judgment recorded that the second applicant had died after the hearing and before the matter was listed for mention.